THE BURKE MURDER CASE
If Dr. Burke wasn’t guilty of attempted murder, he sure as hell acted like he was guilty of something.
Earl Edmunds, a 19 year-old orderly at Burke’s Sanitarium, testified that he saw the doctor shortly before the blast. “I noticed Dr. Burke appeared to be very nervous when he first came by the card room and was still nervous when I saw him in the hallway,” he told the jury. “There was no one with him when I saw him the second time. He was walking slowly and was twitching his beard nervously.” When the explosion was heard a few minutes later, Edmunds ran outside and saw Burke coming towards him. “I guess that girl has done it,” Burke remarked. The intended victims, a woman and her infant child, survived but Burke did not seem terribly concerned about them; as people gathered around the scene of the crime, he called out, “Boys, did you find anything?”
The 1910-1911 trial of Dr. Willard Burke brought the national spotlight to Santa Rosa as no other event in the 20th century, except for that earthquake a few years before. Dr. Burke was wealthy and well-known and Lu Etta Smith, the woman he allegedly tried to kill with dynamite, insisted he was the father of her child. There’s a rundown of many of the people mentioned here in the previous article, or if you don’t have the foggiest about it at all read the introduction to this series.
As the trial entered its second month, the case against Burke appeared stronger every day. It was known from the Grand Jury indictment, for example, that six weeks prior to the crime, Burke visited a mine he owned and came away with six sticks of dynamite, which he claimed were for blowing up a boulder at the Sanitarium. When investigators arrived the day after the dynamite explosion however, Burke lied to them. He told the Santa Rosa police chief no dynamite had been used on the property for fourteen years and told the sheriff’s office that he would ask around, but dynamite hadn’t been used for “a number of years previously.” He also informed Undersheriff Lindsay that dynamite could be purchased at the general store in nearby Fulton, implying the victim herself had purchased it for the purpose of suicide.
The jury also heard contradictory testimony about her injuries. The doctor who initially treated her wounds described powder burns, fine lacerations on her face and a gash on an arm – not trivial, but not appearing life-threatening, either. Yet when first asked about her condition by the District Attorney, Burke said he believed she would soon die.
His prediction almost came true. In the days following the explosion, Dr. Burke, a widely-respected physician, demanded that Lu Etta Smith remain at his Sanitarium under his personal care. Her health grew steadily worse. The arm wound was smelling gangrenous and developed “proud flesh” (the runaway growth of bright pink tissue that develops before a scab forms). During a visit to Lu Etta’s bedside, District Attorney Lea noticed powder from a little box was spread over the wound when dressings were changed. Curious, he poured a bit of the powder into an envelope and sent it to a San Francisco chemist. The compound contained seven percent arsenic. Lu Etta was moved to the County Hospital, away from Burke’s control.
This was a bombshell: It appeared Burke – having failed to kill Lu Etta by blowing her up – was covertly trying to finish the deed by poisoning her. But this evidence had not been revealed to the Grand Jury, so Burke had been indicted only on the dynamiting charge. Why?
District Attorney Clarence Lea’s prosecution was brilliant in all respects, including not seeking to indict Burke with a second count of attempted murder by poisoning. Laypersons knew arsenic was bad stuff, but it’s not as plainly a murder weapon as, say, firing off a stick of dynamite next to someone’s head. The way the arsenic angle played out at trial vindicated Lea’s hesitance; even the Press Democrat – which had produced uniformly excellent trial coverage – was confused, and ran a headline stating, “DR. BOGLE SAYS SYMPTOMS OF POISON WERE LACKING.” This shows a misunderstanding of Dr. Bogle’s testimony: What he primarily said was that a seven percent solution was close to the minimum fatal dose.
Another local physician, Dr. James Jesse, testified the arsenic could have been toxic, particularly since it would have been absorbed easily through the open wound and its effect intensified by repeated applications under bandages. The defense countered with Dr. E. S. Howard, chief surgeon of the San Francisco Emergency Hospital, as an expert witness. He told the court that arsenic was a good antiseptic although he wouldn’t use the stuff himself. In cross-examination by Lea, according to the PD, the doctor “admitted that arsenic is known as one of the ‘secret poisons.’ He said it leaves its traces, however, if one knows where to look for them which is in the bones and in the liver.” The paper ended with the wry observation, “Dr. Howard made a better witness for the prosecution than for the defense, everything taken into consideration.”
A modern Internet search, by the way, turns up that arsenic was sometimes used to treat proud flesh in the Victorian era, although probably not in the nearly lethal quantities found in Burke’s potion. But despite the potential of the arsenic angle to show Burke’s determination to kill his alleged mistress, it became yet another blind alley in the trial. And Lord knows there were enough irrelevancies heard in that court; there was one front page headline about a “farce marriage” between Burke’s head nurse and an Army doctor that took place over a decade earlier, and which has no bearing on the case at all. Honestly, following some of this trial coverage is a bit like enjoying the plot of a Dickens novel until it suddenly dawns on you that ten minutes were just wasted in reading about a minor character’s peculiar fondness for chickens.
After the New Year’s break, the prosecution dropped another another courtroom bombshell: They had recreated the crime. “The remains of a tent constructed and furnished in all respects like the one occupied by Lu Smith on the night of the explosion, and which had been blown up with dynamite in accordance with the theory of the crime as held by the prosecution, was brought into court and bit by bit offered in evidence,” the Press Democrat reported.
Thos. Riley, a miner formerly employed by Dr. Burke at the latter’s Kanaka Peak property, was called to the stand. He told of having performed an experiment a few evenings before at the request of the District Attorney, the object of which was to test a theory of the prosecution regarding the crime…
…there had been two experiments, and the first had not been a success, owing to the fact that the dynamite used was not “sensative,” [sic] only a portion of it exploding…
…It was left for Sheriff Smith to relate the result of the second experiment and tell what it was all about. He told of the construction of a tent at Maroni’s stone quarry near this city which was in all essential respects the counterpart of the one occupied by Lu Etta Smith on the night that her tent cottage at Burke’s was blown up. [He] told how it had been equipped with the same kind of furniture with a lamp and a clock, and how a pasteboard box and two blocks of wood had been placed in the bed so that when covered over with the blankets they resembled a lay figure; and last but not least he told how the dynamite had been hung on the outside and against the tent by means of a string fastened to the upper edge of the wall, and fired from a three-foot fuse of make similar to that alleged to have been used at the time Lu Etta Smith [illegible microfilm].
When it came to showing the results of the explosion, the jurymen [and] spectators that were present in the courtroom were treated to an ocular demonstration. One by one the various objects and pieces were brought in, shown to the jury, identified and put in evidence. Judged by this tent, the effect of the explosion appears to have been almost identical with that which occurred at Burke’s Sanitarium on the evening of February 5, 1910.
And with that, the prosecution rested its case.
|Illustration from the Oakland Tribune, February 14, 1910 (CLICK or TAP to enlarge)
The defense lawyers began by teasing that yes, Dr. Burke would take the stand and testify – but first they had to prove to the jury that Lu Etta Smith was crazy. Really, really, crazy.
Defense Attorney Rollo Leppo told the court they intended to call a large number of witnesses from Lu Etta’s past to show she was periodically insane, irresponsible and “notoriously” immoral: “…[H]er mind was blind, or like that of the drunken man, incapable of perceiving correctly…A harmless conversation which to a sane mind would be perfectly clear and reasonable might take on a different complexion in the brain of a maniac…”
The District Attorney understandably objected to this effort to turn the criminal trial into an ad hoc sanity hearing for the victim, and surprisingly, Superior Court Judge Seawell said there was no legal precedent preventing it. After considering it over the weekend, Seawell ruled the defense could introduce testimony on her mental condition, but not immorality unless it might relate to paternity of the child.
Thus over the next five days the jury and courtroom spectators were entertained with the further odd doings and eccentric beliefs of Smith. They learned she would sometimes come into the Sanitarium kitchen, look up at ceiling and “whistle and holler.” Witnesses described seeing her “not in a very ladylike position,” meaning parts of her arms or legs were exposed. Another said she had a “diseased imagination” and believed “if we allowed ourselves to be raised to a high enough state of being we could understand the birds when they sang.” And if the court hadn’t already had its fill about the “immaculate conception” of her child, there was this:
|Lu Etta Smith told witness that her child was born of an astral conception. “She said a great White Light spread over and enveloped her body, and she knew when she conceived, and that she had never had sexual intercourse with Dr. Burke, and if she had she would be proud to acknowledge it,” said the witness.
But curiously, only one witness said they heard Lu Etta Smith threaten suicide. And that witness was Dr. Burke’s sister.
The only significant physical evidence offered by the defense were four sticks of dynamite that were supposedly the same explosives Burke brought back from his mine. Testifying about the dynamite was another brother, Dr. Isaac Burke, whose San Francisco office the Sanitarium Dr. Burke shared when he visited the city twice a week to see patients. Dr. Isaac told jurors he came up to the Sanitarium the day after the explosion, and that night buried the dynamite in the sandy bed of Mark West creek. He returned about two months later and dug it up, giving it back to his brother who handed it over to his defense attorneys. Asked why he concealed vital evidence from the Grand Jury, the PD reported Dr. Isaac said the object of the secrecy was to “keep it quiet. I did not think the Doctor was guilty of anything, and thought if I said anything about the dynamite there would be a great howl about it.”
So except for Dr. Burke’s upcoming testimony, that was about all the defense had to offer; the case hinged on the jury believing Lu Etta was insane enough to attempt suicide – and likely kill her baby as well – by blowing herself up. The only other line of defense came from a parade of miners from Burke’s mines and acquaintances brought down from the Sierras. All of them said the same thing: Thomas Riley – the miner who had participated in the crime scene recreation and testified he had given Burke six sticks of dynamite, not four – was a lying sonofabitch who wouldn’t tell the truth to save his rotten soul. During their long train ride to the Bay Area paid for by the defense team they all had plenty of time to work up the expected level of bile.
There was one other mini bombshell in this phase of the trial: It seems that some of the witnesses who testified against Burke were receiving strange letters in the mail. Former Sanitarium bookkeeper Dillard and Dr. Hitt – and apparently others – received envelopes with just a sulphur match inside. It was probably supposed to look like a death threat from the Black Hand, which was then much in the news. But whatever the meaning, Judge Seawell told the jury to ignore such threats and turn over anything like that over to the court.